dui defense strategies

did any of these factors contribute to your arrest?

• police officer error
• field sobriety test errors
• breath testing errors
• blood testing errors
• probable cause defenses
• procedural & administrative

If you've been arrested for suspicion of driving under the influence (DUI) or driving while intoxicated (DWI), be advised there are numerous factors that can work in your favor and result in dismissal of your case.

For a conviction to be rendered, the burden of proof is on the government, meaning the arresting officer and the prosecution. ALL aspects of the charges must be proven, which includes but is not limited to proper administration of sobriety tests, chemical tests, probable cause and search and seizure protocols and following the law. Each of these human, mechanical or procedural factors are subject to error, and this article outlines them, any of which can work in your favor. Lets have a look at these:

**arresting police officer error**

The judgment of the officer who stopped you could be in error for any number of reasons. Furthermore, his administration of correct procedure after the arrest could be improper. Here are examples of what can hurt the prosecutions case and therefore help you:

the officer failed to read your miranda rights

If you are taken into custody or the police question you with the purpose of eliciting an incriminating response, they must read you your rights beforehand. If he fails to read you your Miranda rights and obtain a valid waiver of these rights, then any statements obtained after arrest, as long as they are the result of officer questioning and not so-called "spontaneous, unsolicited statements", will most likely be thrown out of court.

the officer did not have probable cause for stopping you

After the officer stops you, he may not arrest you, put you in handcuffs and take you away for administration of chemical tests unless he has evidence that the crime of drunk driving has occurred.

If this happens, you are entitled to what is termed a suppression hearing during which a judge determines whether the arresting officer had probable cause. At these hearings, the officer is cross-examined by the DUI defense lawyer, and while the judge often sides with the prosecution, the defense has the opportunity to expose problems with the DUI investigation. As a result, the prosecution often times will lessen the charge or work with the defense to settle the case. Additional examples of probable cause defenses that may be applicable in some DWI cases are listed in a following section.

the officer mistook the reason for faulty driving

Sober drivers make mistakes all the time: inappropriately wide turns, weaving in and out of traffic, drifting out of their lanes. Drivers talk on cell phones or become distracted by the kids. The officer can mistake any of these as signs of drunk driving, when in reality they may be nothing more than unsteady driving from a merely inattentive, but sober, driver.

Further, fatigue can cause a driver to exhibit these same erratic driving responses. The officer could have confused the miscues of a drunk driver with those of someone who is drowsy or exhausted.

you were stopped without justification

You may not be pulled over arbitrarily by a police officer. There must be reasonable suspicion substantiated by specific articulable facts in order for an officer to stop you. If this standard cannot be met in a suppression hearing, as described above, your case will likely be dismissed.

the officer misjudged the level of intoxication

The Alcohol Behavior Research Laboratory at Rutgers University did a study, which demonstrated that police were no better at judging intoxication levels than were bartenders or social drinkers. Furthermore, none of these three groups were able to judge levels of intoxication accurately more than one quarter of the time. When a DUI prosecutor makes an appeal to the jury based on the officers ability in this regard, his opinion deserves to carry no special weight.

Additionally, police officers ordinarily cite smell of alcohol on the breath as proof of the suspects intoxication. Any chemist knows that alcohol (ethanol) has no odor. What causes the smell of alcohol are the other agents in the beverage. Drinking non-alcoholic beer will give the breath the odor that many officers will claim is the smell of alcohol. All that the odor of alcohol on the breath can indicate is that the suspect probably consumed some alcohol recently. It does not confirm that ones blood alcohol content (BAC) is greater than the .08% level required to demonstrate legal intoxication.

the officer found no indication of mental impairment

Toxicologists know that a degree of mental impairment always precedes physical impairment, if the impairment is being caused by the consumption of alcohol. Police officers often report that persons they arrested were coherent in understanding and answering questions, and following directions throughout the investigation and arrest. It is well establishe scientifically, if mental impairment due to alcohol was not present, then it follows that neither was physical impairment due to alcohol. There may always be physical impairment, stemming from any number of factors, such as sickness, injury, age, obesity, nervouseness, or just a general lack of coordination. The prosecution must prove that any observed physical impairment is cause by the alcohol in question.

lack of correlation between speeding and DUI

While speeding is against the law in itself, studies have demonstrated that speeding is not a correlative factor to driving while intoxicated. A speeding driver is as likely to be sober as drunk, and so speeding is not evidence that the driver is drunk. An officer alleging that he pulled a driver over for speeding as evidence of DUI may be basing his action on invalid assumptions.

the officer mistook other symptoms for intoxication

Police use preprinted forms for filing DUI reports. These contain boxes which the officers simply check off to indicate that the suspect exhibited "bloodshot and watery eyes," "slurred speech", an "unsteady gait" and a "flushed face". In San Diego County, THERE ARE NO VIDEO CAMERAS in the police cars, so these statement are usually left unchallenged by the inexperienced DUI lawyer.

As we all know, numerous other conditions can cause these symptoms. Allergies, exhaustion, sleeplessness or eyestrain could make ones eyes bloodshot. Anger over the traffic stop could cause ones face to flush. Embarrassment or becoming flustered could cause one to slur his or her words. Yet, the officer may not take these other causes into account, however obvious it is that these behaviors are just as likely to come from causes not related to alcohol consumption.

**Field Sobriety Testing Errors**

Roadside sobriety testing is rarely done correctly. Period.

inaccuracies of field sobriety tests

Often times, police will administer tests at the site of the traffic stop in an effort to determine a suspects sobriety. The results and interpretation of these are subjective to say the least. Moreover, without knowing how you would perform under different circumstances even with nothing to drink, these "results" will mean little in a court of law. An experienced DUI trial lawyer should be certified as in instructor in Field Sobriety Testing, and should be able to effectively point out the high level of subjectivity associated with these tests through cross examination.

The factors listed in the paragraph above are not the only aspects that can cause poor performance of a sobriety test in the field. Completely sober people could be expected to struggle on a sobriety test under these conditions:

• Wet, slippery or uneven surfaces
• Unstable footwear such as stiletto heels, boots or dress shoes
• A dark environment punctuated by glaring flashlights, passing traffic or police car flashers
• Cold, rainy or windy weather
• Anxiety, nervousness or anger at being stopped

If you performed poorly on a field sobriety test, one or more of the factors above may have been present, such performance becoming attributable to these, rather than intoxication.

field sobriety tests were not properly administered

Standardized tests for sobriety have been devised by the National Highway Traffic Safety Administration (NHTSA). Officers must administer these in compliance with NHTSA regulations, but often times they do not adhere to the guidelines or even receive the necessary training.

There are only 3 standard field sobriety tests: a walk the line test, a one-leg balance test and an eye gaze test (following a finger or pen light with the eyes). Failure of the officer to administer these properly may throw the case into doubt and a defense will challenge any indication that the officer is inadequately trained or did a slipshod job.

field sobriety tests were used that are unreliable

Tests other than the three listed above are nonstandard and unreliable. The NHTSA has never established standards for test such as: counting fingers, touching finger to nose, picking up a coin, reciting the alphabet, counting backwards or others. No criteria exist for administering, scoring or interpreting these tests and their use as part of a DUI prosecution is a dubious strategy since they are unreliable.

**Breath Alcohol Testing Errors**

Many factors render BAC testing even more prone to inaccurate results than the field tests.

errors inherent in blood and breath tests for intoxication

Assuming that the test machines are in standard calibration and that the tests were administered flawlessly (a rare scenario), experts still acknowledge that DUI breath tests contain an error rate of plus or minus .02%, and blood tests have an error rate of plus or minus .005%. When you add in the factors below, further questions can be raised about test results. If a second test is given, which is within your rights, the readings must be within .02% of each other pursuant to California law that governs Breath Testing.

heartburn can give a falsely high reading

The breath test is designed to test the amount of alcohol present in the air in your lungs. If you suffer from heartburn, GERD (gastroesophageal reflux disease) or acid reflux, alcohol from the stomach can travel back from the stomach to the throat or mouth. When you blow into the breath test machine, what is measured in these instances is the mouth alcohol plus the air in your lungs. This can raise your reading on the test falsely by a factor of 4, meaning that an actual blood alcohol concentration of .04 would read as .16, double the legal limit. If you had just eaten a spicy meal and were experiencing heartburn when you took the test, you might give a very high false reading. Even a slight, unnoticeable regurgitation can result in mouth alcohol being blown on the test.

mouth alcohol from other sources can also affect test results

Mouth alcohol can come from sources other than belching or heartburn. Decaying food particles trapped between the teeth or in dentures, braces, cavities or impactions will tend to form alcohol in the mouth. So would latent alcohol from having recently taken cough syrup, cold medicine, homeopathic preparations, mouthwash or used various breath fresheners.

Like alcohol burped up from acid reflux, latent alcohol in the mouth from these sources can also dramatically raise breath test results.

the machines also read other chemicals

People who work around chemicals can absorb these compounds and these may show up in lung tissue. Such things as nitrous oxide, acetonitrile, ethylene, toluene, isopropanol, if sound in the lung tissue of a DUI suspect, can give a falsely high reading on the breath test.

Recent exposure to any type of volatile fumes (gasoline, paint, lacquer, etc.) can falsely elevate test results.

a low-carb diet can fool the machine

When a person is eating a high protein, low carbohydrate diet, such as the Adkins diet, the body produces compounds called ketones during metabolism. When a person then consumes carbohydrates, as in drinking alcohol, these ketone bodies in the blood can produce another form of alcohol, isopropyl alcohol. Most breath testing machines do not distinguish between the two even though it is only the ethanol that causes impairment. A falsely high test result can result.

If you are hypoglycemic, borderline diabetic or if you have diabetes, consumption of alcohol, even in small amounts, will cause your body to convert elevated levels of acetone into isopropyl alcohol.

your blood alcohol level was still rising.

When you consumed your alcohol may have more consequence on your test reading than how much you consumed. The reason is because alcohol can take up to 3 hours to absorb fully into the bloodstream. In other words, your peak level BAC may come at the station when taking the breath test and could be twice as high as your level when you were stopped, particularly if you consumed the alcohol shortly before you were stopped. Your BAC level may have been .07 when you were stopped but an hour later at the police station when the alcohol has been fully absorbed, the test reads .14. No law mandates against a BAC level above .08 at a police station; its the level when you were driving that counts. This is another potential source of breath testing inaccuracy.

While alcohol is being absorbed, the BAC content of the blood in your arteries may be 60% higher than the content of the blood in your veins. As a result the reading of the deep lung air may give a falsely high reading because of the arterial blood that supplies the lungs.

Also, if you can prove that sufficient alcohol was consumed while you were driving or after driving ended but before the police arrived, you can present a successful defense.

individual variations in your ratio of blood to breath

Across the general population, thereis a conversion ration that breath machines use to converta breath alcohol reading to a blood alcohol reading. The machine assigns this value at 2100 to 1. Fundamental to breath testing, is the assumption that the subject being tested conforms to this ratio. Scientists, however, have disclosed widely different ratios among individuals across the population. And, if a person's breath-to-blood conversion ratio is lower than 2100 to 1, a breath test will reveal a blood alcohol level much higher than it actually is.

breathing techniques and temperature can affect test results

Variances in the duration and volume of the breath sample may result in a false high or a false low reading. The machine is calibrated to receive a breath sample that lasts over 10 seconds in delivery time, which usually translates to the delivery of approximately 2 liters of air. A longer breath sample may yield a much higher amount of alcohol being registered. Conversely, a shallow breath or hyperventilating may result in mouth alcohol being blown, again giving a false high reading.

Even breath temperature may affect results. The machines are calibrated to record breath blown at a temperature of 34 C., just a few degrees below normal body temperature. Even a slightly higher temperature can give a falsely higher reading. Such can occur from fever, sitting in the back of a hot squad car, exertion from dancing at a club, sitting in a hot tub and so on.

Due to various physical conditions such as chronic lung problems (emphysema, asthma, bronchitis or chronic obstructive pulmonary syndrome) or dental problems, many persons ar not suitable candidates for breath alcohol testing, yet these same individuals are given breath alcohol tests day in and day out, with little regard for the physiological differences among individuals being tested by one, generic machine.

test results may be contaminated.

Radio waves generated by any number of electronic devices such as police radios, radar guns, scanners, computer, etc., can interfere with electronic circuitry in blood or breath testing machines. Radio Frequency Interference, or RFI as it is known, can influence a breath machine and render a false test reading. While the amount of inaccuracy is difficult to determine, it nevertheless adds yet one MORE more degree of skepticism surrounding breath alcohol tests.

A disconnect may exist between intoxication symptoms & BAC test results.

A BAC reading is only one factor in a DUI case. Sometimes the test reading is inconsistent with other evidence such as the field sobriety tests, officer reports of the suspects behavior, etc. As well, specific symptoms can be observed at different levels of intoxication and if the DUI suspects other indicators do not conform to what would be expected from his test results, this disconnect calls the entire case into question. That is, the expected level of impairment was not evident at the reported BAC test results.

**Blood Test Errors**

Like the breath test, blood tests, while generally more accurate, are subject to flaws of their own. A listing of these include:

• Improper administration of the test.
• Contamination of the test, such as by swabbing the skin with alcohol.
• Formation of alcohol in the sample by fermentation between the time the sample is drawn and its analysis.
• A mix up in samples results in a wrong blood sample being analyzed.

**Probable Cause Arguments**

Lack of Reasonable and Articulable Suspicion for Stop

Addressed in broader terms under Police Errors, the officer must be able to establish and convince the Jury he or she had justifiable and articulable reason to stop you stemming from actions that violated a law or aroused obvious suspicion. Driving with the window open in cold weather is not illegal, nor is driving late at night when the bars close, weaving within a single lane, or making a turn with a wide radius. Having an unkempt or slovenly personal appearance is not a crime.

In Delaware vs Prouse the Supreme Court affirmed that "law enforcement's suspicion must be reasonable and distinct to warrant stopping and detaining a driver, such as breaking a law or being a fugitive".

If the officer cannot identify an appropriate reason for stopping you, an aggressive attorney may achieve a case dismissal based on a pretensual and random stop.

your detainment exceeded reasonable length

The officer cannot detain you longer than a brief, reasonable period. A traffic stop lasting longer than 20 minutes will again raise a probable cause defense requiring officer's articulate justification and demonstrate a "rising level of proof" beyond a hunch or sheer suspicion.

police acted on an anonymous tip

The officer stopped you on hearsay rather than witnessing a violation. The officer lacked of basis or "cause" because the report was unreliable or uncorrobarated, or derived from an informant, convicted criminal, etc. Invalidate the stop, invalidate the case.

**Procedural and Administrative Errors**

There is a third class of errors on which a DUI prosecution can fall apart. These stem from improper conducting of tests or failure by the police to stick to standard administrative procedures.

failure to follow regulations

Anyone administering a DUI breath or BAC test must comply with the procedures laid out in Californias Code of Regulations Title 17. The police frequently break these regulations and their failure to do so can invalidate BAC test results and lead to their dismissal as evidence in a case.

For example, a BAC test must be administered within 3 hours of the time your driving ended. Failure to do this makes it difficult to prove that your level was above the legal limit when you were driving.

improper officer behavior

If, in handling your case, the arresting officer obstructs justice, perjures himself, or otherwise attempts to conceal evidence the prosecution cannot proceed. More often, if you are stopped or arrested without probable cause, the case will likely collapse.

Should the officer retire, move to another city, be fired or himself indicted or die, the case may be dismissed.

lack of or improper observation period prior to testing

The officer is required by regulation to observe the DUI suspect for a continuous 15 minute period prior to BAC testing. The reason for this is that is the suspect belches, hiccups, regurgitates anything or consumes anything in that period, mouth alcohol may be formed and when blown into the machine, a false high reading may result. If the officer is doing anything but watching the suspect, such as filling out reports, setting up the machine, talking to partners, etc., the test results can be challenged and rendered invalid by the court. Transporting you to the station in his patrol car does not count, nor does walking around the car to let you out or letting you use the restroom or telephone where you are left alone. It must be fifteen minutes of continuous observation.

As you can see from the above small percentage of potential defense tactics, a DUI case conviction is rarely a foregone conclusion. The prosecutor will present evidence, but as we've seen, much of what he may present as scientific is, in fact, ambiguous or worse. Many factors can deflate a case in favor of the defense. In our legal system, the burden of proof rests with the State and utilizing information such as that given here can help an attorney develop a successful defense strategy. Additional information can be found in the Win DUI section

If you are facing driving under the influence or related charges, please call us at 619.231.7412 twenty-four hours per day, 7 days per week. Unlike most lawyers, rather than use an answering service, we handle our after hours calls in house.